Citation Nr: 21011252 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 20-21 951 DATE: March 1, 2021 ORDER The appellant’s motion to vacate the September 21, 2020 decision of the Board of Veterans’ Appeals (Board) to the extent that it dismissed entitlement to service connection for diabetes mellitus, a heart condition (triple bypass surgery), left leg amputation, right leg amputation, kidney disease, and hypertension, is granted. Entitlement to service connection for diabetes mellitus is denied. Entitlement to service connection for a heart condition (triple bypass surgery) is denied. Entitlement to service connection for left leg amputation is denied. Entitlement to service connection for right leg amputation is denied. Entitlement to service connection for kidney disease is denied. Entitlement to service connection for hypertension is denied. FINDINGS OF FACT 1. Pertinent evidence was in VA’s possession, but not available for review by the Board, at the time it issued its September 21, 2020, decision that dismissed service connection for diabetes mellitus, a heart condition (triple bypass surgery), left leg amputation, right leg amputation, kidney disease, and hypertension. 2. The preponderance of the evidence shows that the Veteran did not have actual herbicide exposure while in military service. 3. The preponderance of the evidence shows that diabetes mellitus was not present during active duty or until many years thereafter and it is not related to active duty service. 4. The preponderance of the evidence shows that a heart condition was not present during active duty or until many years thereafter and it is not related to active duty service. 5. The preponderance of the evidence shows that left leg amputation was not present during active duty or until many years thereafter and, more importantly, it is not related to active duty service. 6. The preponderance of the evidence shows that right leg amputation was not present during active duty or until many years thereafter and it is not related to active duty service. 7. The preponderance of the evidence shows that kidney disease was not present during active duty or until many years thereafter and it is not related to active duty service. 8. The preponderance of the evidence shows that hypertension was not present during active duty or until many years thereafter and it is not related to active duty service. CONCLUSIONS OF LAW 1. The criteria to vacate the September 21, 2020, Board decision to the extent that it dismissed entitlement to service connection for diabetes mellitus, a heart condition, left leg amputation, right leg amputation, kidney disease, and hypertension have been met. 38 U.S.C. § 7104; 38 C.F.R. §§ 19.4, 19.7, 20.904. 2. The criteria for entitlement to service connection for diabetes mellitus have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for entitlement to service connection for a heart condition have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for left leg amputation have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for right leg amputation have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for kidney disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 7. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Marine Corps from October 1969 to October 1973. The Vacatur In November 2020, the Board received the appellant’s motion to vacate its September 21, 2020, decision to the extent that it dismissed entitlement to service connection for diabetes mellitus, a heart condition (triple bypass surgery), left leg amputation, right leg amputation, kidney disease, and hypertension following the death of the Veteran. In essence, the appellant’s representative argued that the decision should be vacated as to these six issues because pertinent evidence was in VA’s possession (i.e., the grant of substitution to the appellant), but not available for review by the Board at the time it issued its September 21, 2020, decision. Simply stated, the evidence was submitted, but not yet available to the undersigned for review in the VA’s electronic database. In this regard, controlling laws and regulations provide that the Board has an obligation to review and consider all evidence of record when adjudicating claims for VA benefits. See 38 U.S.C. § 7104 (a); 38 C.F.R. §§ 19.4, 19.7. They also provide that the Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.904. With the above criteria in mind, the Board finds that appellant was denied due process of law as to the above issues when it issued the September 21, 2020, decision without considering the above cited evidence. Accordingly, the Board vacates the September 21, 2020, decision to the extent that it dismissed entitlement to service connection for diabetes mellitus, a heart condition (triple bypass surgery), left leg amputation, right leg amputation, kidney disease, and hypertension. Id. Service Connection The appellant contends the Veteran’s diabetes mellitus, heart condition (triple bypass surgery), left leg amputation, right leg amputation, kidney disease, and hypertension were due to exposure to herbicide agents while stationed in Okinawa. The law provides a presumption of service connection for certain diseases associated with exposure to herbicide agents, and that become manifest within a specified time period, even if there is no record of evidence of such disease during the period of service. Veterans who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, or in or near the Korean DMZ between April 1, 1968, and August 31, 1971, are presumed to have been exposed to herbicide agents. See 38 U.S.C. § 1116; 38 C.F.R. § 3.307 (a)(6). For those veterans who have been exposed to herbicide agents, certain diseases are acknowledged to be presumptively related to such exposure. 38 U.S.C. § 1116 (a)(2); 38 C.F.R. § 3.309 (e). The diseases listed at 38 C.F.R. § 3.309 (e) shall have become manifest to a degree of 10 percent or more at any time after service, with exceptions not applicable in the instant case. 38 C.F.R. § 3.307 (a)(6)(ii). Many of the Veteran’s claimed conditions are not one of the enumerated diseases listed in § 3.309 (e) which means they are not subject to presumptive service connection. However, some of the Veteran’s claimed conditions are those considered by § 3.309 (e), such as type II diabetes mellitus and coronary artery disease (claimed as a heart condition with triple bypass surgery). The Veteran contended he was exposed to herbicide agents while in Okinawa during the Vietnam War time period. Specifically, the Veteran claimed barrels of Agent Orange were along the perimeter in Okinawa while he was on guard duty. See February 2020 Decision Review Office Hearing Transcript. In support of his claim, the Veteran submitted an article in June 2018 claiming dozens of men encountered leaking barrels unearthed at the Marine Corps Air Station in Futenma, Okinawa. However, the article provided did not address what was in those barrels. Furthermore, the Department of Defense (DoD) reported Okinawa was not on the list of locations outside of Vietnam and the Korean DMZ where herbicides were used, tested, or, important for this case, stored. Additionally, Okinawa was not on the Agent Orange (AO) shipping supply line. While there are many media articles alleging the presence of AO on Okinawa, none of them provide actual documentation and buried drums were tested and were not found to contain AO. The Board is sympathetic to the Veteran’s past contentions and has fully considered his statements. The Board also read the article excerpt the Veteran provided in June 2018. However, after weighing all of the evidence, including the persuasive statements and position of DoD that no herbicide agents were used or stored on Okinawa and the fact that Okinawa is not listed as one of the places herbicide agents were used by DoD, the Board finds the Veteran was not exposed to herbicides while in service. Therefore, the service connection claims cannot be granted on a presumptive basis (in any event, it is important for the appellant to understand that most of the disabilities at issue are not presumptively related to herbicide exposure). The factual evidence of record clearly supports this finding. We can not ignore such evidence. Nevertheless, the availability of presumptive service connection for a disability based on herbicide exposure does not preclude a Veteran from establishing service connection with proof of direct causation. Stefl v. Nicholson, 21 Vet. App. 120 (2007); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107 (a). VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for a heart condition. 3. Entitlement to service connection for left leg amputation. 4. Entitlement to service connection for right leg amputation. 5. Entitlement to service connection for kidney disease. 6. Entitlement to service connection for hypertension. As noted above, the availability of presumptive service connection for a disability based on herbicide exposure, does not preclude a Veteran from establishing service connection with proof of direct causation. In this regard, the post-service record shows the Veteran being diagnosed with type II diabetes mellitus, a heart condition, bilateral leg amputation, kidney disease, and hypertension. See, e.g., May 2018 Disability Benefits Questionnaires (noting a diagnosis of diabetes mellitus in 2000, coronary artery disease in June 2017, left leg amputation in 2001, right leg amputation in 2003, and hypertension); August 2017 Allentown OPC, Primary Care Initial Visit (showing chronic kidney disease, stage 4, following dialysis in June 2017). It is important for the appellant to understand that the Veteran was not diagnosed with these conditions until decades after his separation from military service. Such a fact does not support the claim. Moreover, the Boards finds that the Veteran is competent to report on the events he experienced while on active duty as well as the observable manifestations of his disabilities. See Davidson, 581 F. 3d at 1316. However, the service treatment records, including the October 1973 separation examination, are negative for history, complaints, symptoms and/or a diagnosis of type II diabetes mellitus, a heart condition, bilateral leg amputation, kidney disease, and hypertension. In fact, the Board notes that when seen in October 1973 for separation, his examination was normal except for a tattoo body mark. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Accordingly, the Board finds that the most probative evidence of record shows that the Veteran did not have a disease or an injury while on active duty that caused his diabetes mellitus, heart condition, bilateral leg amputation, kidney disease, and hypertension. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a); Colvin, 1 Vet. App. At 175. The detailed records in service provide particularly negative evidence against the claim, clearly indicating treatment for problems other than the issues before the Board. Similarly, the Board finds that the record does not show that the Veteran had a continued problem with diabetes mellitus, heart condition, bilateral leg amputation, kidney disease, and hypertension in and since service. In fact, as noted above, when seen in October 1973 for separation, his examination was normal; providing highly probative evidence against the claim. At this point, the service medical records and the post-service medical evidence provides evidence against the claim. In fact, it does not even appear that the Veteran alleged such continuity of symptomatology. Therefore, the Board finds that the most probative evidence of record shows that the Veteran did not have a continued problem with diabetes mellitus, a heart condition, bilateral leg amputation, kidney disease, and hypertension in and since service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (b). Furthermore, the record does not show that the Veteran’s diabetes mellitus, heart condition, bilateral leg amputation, kidney disease, and hypertension are due to his military service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (d); also see Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992) (establishing service connection requires finding a relationship between a current disability and events in service or an injury or disease incurred therein); also see Owens, 7 Vet. App. at 433. In this regard, the Board finds that the criteria to provide the appellant with a VA opinon to obtain an etiology opinion has not been met because the record does not show complaints, diagnoses, or treatment for diabetes mellitus, a heart condition, bilateral leg amputation, kidney disease, and hypertension while in service or until decades after service. See Paralyzed Veterans of America, et. al., v. Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003) (holding that the criteria for obtaining an etiology opinion have not been met when the evidence of record does not establish that the veteran suffered an event, injury, or disease in service because no reasonable possibility exists that providing a medical examination or obtaining a medical opinion would substantiate the claim); Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (VA is not obligated to provide an examination for a medical nexus opinion where, as here, the supporting evidence of record consists only of a lay statement). The service and post-service medical records only provide evidence against this case, indicating problems that began well after service with no connection to service. In addition, the Board finds that the Veteran was not competent to provide the missing nexus opinion because he did not have the required medical expertise to provide an answer to this complex medical question (i.e., what caused his diabetes mellitus, heart condition, bilateral leg amputation, kidney disease, and hypertension). See Davidson, 581 F. 3d at 1316. Accordingly, the Board finds that the preponderance of the evidence is against the Veteran’s claim of service connection for diabetes mellitus, a heart condition, bilateral leg amputation, kidney disease, and hypertension. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. In reaching all the above conclusions, the Board considered the doctrine of reasonable doubt. 38 U.S.C. § 5107 (b). However, as the preponderance of the evidence is against the claim, the Board finds that the doctrine is not for application. See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert, 1 Vet. App. at 53. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.